Nothing new here, but as long as Mitch McConnell continues to claim that there's some question about whether or not Republicans are using the filibuster against Elena Kagan, I might as well continue to point out that this is entirely phony and disingenuous, and the reporters really shouldn't play along.
Of course the Republicans are using the filibuster against Kagan. What seems likely is that they don't actually have the votes to sustain a filibuster -- barring surprises, it appears that she'll be confirmed with more than 60 votes. But they haven't abandoned their choice that everything must have 60 votes to clear the Senate. If they had 60 votes against confirmation, they would also have 60 votes against cloture. And if McConnell claims that Republicans haven't decided yet about a filibuster, the correct follow-up reporters should ask is whether he is considering voting yes on cloture and no on the nomination. The answer, of course, is that he isn't.
Kagan, or any other nominee, isn't going to be confirmed by a 53-47 vote. If there were only 53 votes to confirm, then there would also be only 53 votes for cloture. Or, if Democrats held the balance (as in the current Senate) and voted against confirmation and for cloture, they would be attacked by Republicans for casting a phony vote against her, with the "real" vote, the one on cloture, being the one that counted. And all of that is true whether or not Republicans, having in fact only 38 or 35 votes against the nominee, force a cloture vote. Of course they're using the filibuster against Kagan. They've made it a 60 vote Senate, and they aren't going to make an exception for Supreme Court nominees.